Monday, March 28, 2011

German Politician Learns About His Own Cell Phone Tracking Data

An article this weekend illustrates the extent of location monitoring possible with cellphones.  The phones use GPS and other technology to determine the location of the user at a given time, and the cell phone companies retain much of this data.

A German politician, after much legal wrangling, obtained this location data from his cell phone provider.  In a six-month period the company recorded and saved his location longitude more than 35,000 times.

One interesting question is why the cell phone companies choose to retain this data.  The government does not require them to do so, and is likely isn’t necessary for billing purposes for most users.  Safety reasons may require access to instant or recent data, but would likely not require the long-term retention of the data.  The government likes to access this data for investigative purposes.

The article hints that the data “could be lucrative for marketers.”  This seems to be useful only if patterns of behavior are detectable from stored data.  AT&T, according to the article, works with a company that uses anonymous location information “to better understand aggregate human activity.”  The company’s website claims that its product “enables companies to understand customers and anticipate needs in order to deliver accurate recommendation, personalization and discovery.” 

For example, if the company learns that a person goes to a coffee shop every day at 8:30 on the way to work, a competing coffee shop could send a text message or advertisement at 8:15 each morning.

It is unclear in America how this information could be obtained by customers.

Saturday, March 26, 2011

Emails From Wisconsin Professor Are Protected By Right of Academic Freedom

A constitutional issue concerning emails has arisen in the Wisconsin Union debate.  According to news reports, the Wisconsin state Republic Party has requested copies of the emails from a history professor who had spoken and written critically of the Republican governor.  “There is an academic freedom issue here,” he said in the report.

The issue is whether there is a First Amendment right to "academic freedom," and whether a subjecting a professor’s emails to state open records laws violates that right.  The argument in favor of this conclusion is that requiring the production of the emails will have an unduly chilling effect on academic freedom and free speech.

I think that the academic freedom issue here outweighs the interests in the provision of the records, and that the professor has a good argument that his emails are protected by the First Amendment.

The Supreme Court has recognized the crucial role universities play in the dissemination of ideas in our society.  In doing so, it recognized academic freedom as a “special concern of the First Amendment.”   In a 1967 case, Keyishian v. Board of Regents of University of New York, the Court said:  “Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.”  And, in the famous Baake case on affirmative action, the Court said:  “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.”

In 1957, the Court in Sweezy v. New Hampshire, considered a college professor's refusal to answer questions about the content of his lectures and his knowledge of the Communist party.  A plurality of the Court concluded:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

I think that the Wisconsin Professor has a good argument that the First Amendment protects his emails from disclosure.  The state argument is the open records law is a reasonable regulation that assists in good government.  This is undoubtedly correct, although the interest is less substantial than when applied to primary and secondary schools. 

A key feature of academics – and part of the reason public universities grant tenure – is that academics serve a state interest by engaging in scholarly research and debate.  There is no doubt that emails exchanged with colleagues contain ideas that are not only controversial but in the developmental stage.  Likely, a professor will suggest an idea to a colleague, only to later reject the idea upon further deliberation or the receipt of comments.  Requiring a professor to disclose emails will have a significant chilling effect on this exchange of ideas.  This is especially true when the professor is discussing controversial or high profile issues.

I hope that the professor in Wisconsin considers a fight against this request.

Tuesday, March 22, 2011

School Officials May Have Violated Student Rights By Searching Cell Phone for Evidence of Sexting

A middle school sexting case may help establish the ability of school officials to search student cell phones.

In a previous post I explained that a standard of reasonable suspicion applies to a determination of the legality of a school administrator's search of a student, and that any search must be reasonably related to the legitimate school objectives and not excessively intrusive.  Under this standard, school administrators probably cannot conduct random searches of the contents of cell phones. However, they can probably search the contents of a cell phone if there is reason to believe that the phone is used for criminal activity, such as bullying, sexting, or threats to safety.

In the Texas case, an eighth-grader admitted to sexting a boy.  A school official suspected the eighth-grader had been using a cell phone. When the student denied using the phone, the official she took the phone from her, turned it on, and accessed the sent messages.  While looking through the messages, a nude picture was discovered. 

The Texas judge ruled that while the initial search of the phone may have been justified because the use of the phone violated school rules, the official went too far in searching the contents of the sent messages.

The student’s lawsuit against the school for violation of her rights to will proceed to trial. 

What to Watch In the Proposed Tracking Legislation

CNET brings more news about possible federal legislation concerning warrantless GPS searches and cell phone searches.

Sen. Ron Wyden (D-Oregon) proposes to require a warrant whenever the police attempt to locate a person through a wireless device or through a GPS tracker placed on a vehicle.
The important thing to watch as this legislation makes its way through Congress is the enforcement provisions.  The article suggests that, as currently written, the use of evidence obtained in violation of the proposed statute in court is limited.

Suppression is not guaranteed, however.  Simply because an act by law enforcement is declared illegal by Congress does not mean that the evidence would not be admissible in court.  If the act does not violate the Fourth Amendment, then Congress is generally free to establish whatever remedy it thinks is appropriate.  For example, Congress could decide that location evidence obtained in violation of the statute would be admissible in a criminal trial, and then allow the defendant to file a lawsuit against the officers. 

Monday, March 21, 2011

Silly Season for TSA Protests Gets Sillier

Just when I thought we had reached the limits of TSA foolishness, I read more about that student who was arrested at Richmond Airport in Virginia after stripping and writing the text of the Fourth Amendment across his chest to officials.  He is suing. 

My initial reaction:  “Of course he is.”

Previously, I had written about this story under the headline, “Silly Season for the Fourth Amendment and the TSA.

TSA procedures should be subjected to scrutiny.  I believe the TSA is squarely within the confines of the Fourth Amendment Fourth.  The problem is that juvenile stunts like this make it more difficult to engage in a meaningful discussion of Fourth Amendment issues, especially as we try to apply the law to new technologies. 

Bust of Pedophile Ring Raises Encryption Issues

Last week, we learned that Police has busted an international pedophile ring.  The police rescued 230 children from sexual abuse and arrested 184 suspects.

The legal-technology issue here centers on the use of an Amsterdam-based online forum called  The forum was heavily encrypted, according to reports. 

Apparently, the police arrested the forum's administrator – who then helped police crack the complex web of encryption measures shielding users' identities.  If this had happened in the United States, I believe that the suspects would be able to raise an interesting argument that the use of encryption created an expectation of privacy that could not be cracked by law enforcement without a warrant.  

Of course, the suspects probably could not be less sympathetic.

Wednesday, March 16, 2011

Court Decision to Allow Government to Obtain Twitter Records in Wikileaks Case Raises First Amendment and Fourth Amendment Concerns

A Federal Magistrate Judge in Virginia has ruled that the government can access Twitter accounts in connection with the Wikileaks investigation.  A copy of the decision is here.

The case arose when three Twitter users sought to prevent the government from obtaining copies of information in their accounts.  The information sought by the government included personal information, billing information and “records of user activity for any connections made to or from the Account, including date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es).”  The government did not seek content information. 

While the decision deals with some statutory issues, I want to highlight to constitutional issues.  The users claimed that the government request violated their First amendment rights, particularly speech and free association. 

The court believed that it was required to balance the possible constitutional infringement and the government’s need for the records.  In doing so, the court held that the government could access the records because there was no evidence that the investigation was instituted or conducted in bad faith, maliciously, or with intent to harass.

Perhaps most importantly, the court believed that the users had not demonstrated that providing the information would have a chilling effect on speech or association.  This is partly because the users made their posts publicly available. 

In regards to the Fourth Amendment, the users claimed that the Fourth Amendment protected against disclosure without a warrant their IP address information.  The claim is that this information warrants Fourth Amendment protection because it is “intensely revealing as to location.”  This argument failed because the users voluntarily conveyed to Twitter their IP addresses.  In this regards, IP addresses are like phone numbers.  And many courts have held that phone records that show only calls and numbers are not subject to Fourth amendment protections. 

My view is that this decision is potentially problematic from a First Amendment standpoint.  It is not hard to imagine that a government program of obtaining IP address or lists of accounts followed would chill association.  I hope to post more thoughts on this later.

Tuesday, March 15, 2011

Government Claims in California That GPS Tracking Is Less Intrusive Than Traditional Surveillance.

A California Appeals Court decision contains a novel argument in support of the legality of warrantless GPS tracking by law enforcement.

The case is People v. Scott.  The Defendant was charged with 11 counts of arson of a forest arising out of a series of fires in the Jacks Peak area of Carmel in 2006 and 2007.

During the investigation, the police installed a GPS tracking device under the rear bumper of defendant's Oldsmobile.  The device was installed while the defendant and his wife were at dinner.  The defendant had been identified as a suspect based on the video surveillance. 

Details about the law on GPS tracking can be found here.  Short version:  some courts have allowed GPS tracking without a warrant on the theory that the GPS device reveals only what the police could observe through traditional, legal, surveillance.

The issue I want to focus on involves the defendant’s argument that the installation of the GPS device here was more of a disturbance than traditional visual surveillance.  The court rejected this argument.  The court noted that the police “did not open any doors, the hood, the trunk, or any containers on the car to install the GPS device.” 

The Court noted that decisions requiring a warrant before the police could use a GPS device were based on concerns “about the amount of data that GPS devices can record and store as compared to older tracking technology, which in turn has the potential to reveal an enormous amount of personal information about the citizen.”  The Court rejected this argument because “that is not the way the officers used the GPS device in this case.”  Instead of using the GPOS device “as a substitute for traditional law enforcement efforts,” the police had “eight to 10 officers in cars, following defendant and observing his activities.”  Instead of using the “the GPS device to track all of defendant's activities,” the police relied “on the GPS data when the officers who were conducting surveillance on the ground lost track of defendant because of his erratic driving habits or when a fire occurred.”  The court concluded “that the GPS tracking evidence here did not reveal anything that traditional surveillance would not have provided, and therefore did not constitute a search [requiring a warrant].”
Here is the most interesting part.  The court also gave credit to a prosecution argument that GPS tracking is less intrusive that traditional surveillance, because “it did not provide information regarding what defendant did at a particular location, who he was with, the nature of the location he visited (i.e., whether it is was a home, a business, or woodlands) or what he did inside his car.”

Monday, March 14, 2011

Government Can't Prove That Defendant Knowingly Possessed Chile Pornorgraphy on Used Computer

The Texas Court of Criminal Appeals reversed a conviction for possession of child pornography.  The child pornography was found on the defendant’s computer.  The computer was searched after the police obtained a warrant to search for evidence of a sexual relationship the defendant had with a minor.

The defendant had purchased the computer second-hand at a flea market.  The state’s expert admitted that the computer contained viruses capable of covertly placing images on the computer, and that “it was impossible to determine when the images were placed on to, accessed, or deleted from, the computer.”  
Under these facts, the prosecution could not prove that the knowingly or intentionally possessed the images.
The defendant was still sent to prison on the other charges.

Here is the question:  will more child pornography criminals start to use “unsafe” computeing practices (i.e. no virus protection or firewalls, used computers, etc . . .) to insulate themselves from prosecution?  If yes, can the government do a better job of identifying the dates when files are created on a hard drive?

Court: No Expectation of Privacy in Cell Phone Abandoned in Motel

A federal case from New Mexico underscores something I have noted before (for example, here and here – don’t abandon a cell phone if you expect the information contained on the phone to remain confidential.

The case is U.S. v. Washington.

The defendant was arrested for suspicion of drug smuggling after a Border Patrol agent observed suspicious behavior by a couple of vehicles.  While checking the registration, the vehicles varied their speeds in an apparent effort to get the agent to pass them.  The Agent eventually stopped one of the vehicles.  Based on confusing answers from the driver, the Agent suspected that the driver was a smuggler.  A drug dog alerted on the trunk and a subsequent search of the vehicle revealed a duffle bag in the trunk containing three bundles of marijuana wrapped in green plastic and weighing approximately 42 pounds.   The driver initially denied knowing anything about the marijuana in the trunk of her car, but during the traffic stop sent a text message to someone reading, "goin to jail. I got this." The driver later admitted that she knew about the marijuana, but that it was not hers and that she was transporting it from Arizona to Illinois for her boyfriend, the defendant. 
Border Patrol agents located the other vehicle in in a motel parking in Truth or Consequences, New Mexico.  

The agents knocked on the door of the Defendant's room, announcing "United States Border Patrol." The window to the motel room was open about four inches, and the agents could hear movement inside of the room. After approximately five minutes, one of the occupants opened the door. The defendant was detained and an Agent performed a brief search of the motel room for any weapons or other contraband in plain view.   An hour later, the defendant was arrested and placed in a holding cell. The room was searched and some marijuana residue was found around the toilet. 

A second search of the motel room was also conducted later that afternoon in an effort to find the phone to which the driver of the first vehicle had texted "goin to jail. I got this." Based on information from the cell phone company, the phone was located underneath the countertop, in a crevice near the wall.  The phone was found at about 1:30 p.m. in the afternoon;  checkout time for the motel was 11:00 a.m. The phone’s screen had been smashed.

The government – perhaps acknowledging the questionable legality of the initial search of the motel room -- stated that it did not intend to introduce or any evidence seized from his car or the motel room, except for the cell phone.

In regards to the cell phone, the government could not claim that an immediate search was justified because of the threat that the incriminating message could be deleted.  This is because the agents were already in possession of the sending phone, and thus had evidence of the text message and the phone number to which the text was sent.

However, the government could use the cell phone as evidence because “the second search of the motel room was not an invasion of Defendant's right to privacy because it was not conducted until 1:00 p.m., after his rental period for the motel room had expired.”  More importantly, the defendant had clearly abandoned the phone by leaving it under the sink and smashing the screen. 

Friday, March 11, 2011

Police Hold a Suspect While They Obtain A Warrant to Search for Child Pornography

A new decision, U.S. v. BLAUVELT discusses police efforts to obtain evidence of child pornography.
One interesting note:  one of the judges on the case was former Supreme Court Justice Sandra Day O’Connor.  

The defendant was convicted for the production and possession of child pornography. 

The case started when the police received the defendant emailed photos of his ex-girlfriend’s (GF1) 14 year old sister to another ex-girlfriend (GF2).  GF2 knew the defendant’s email password, and told GF1.  GF1 accessed the defendant’s email account and  found pictures of the 14 year old “in pornographic poses,” and also “apparently snorting cocaine with a minor male, T.J.” 

The images were reported to the police.  The police viewed printouts of the emails and also interviewed the minor girl and the minor boy depicted.  The children claimed that the photos were taken with the defendant’s cell phone, and that the defendant “had supplied them with cocaine, alcohol and psilocybin mushrooms.”

While a search warrant was being prepared, officers who were watching the home stopped the defendant “told him that he was not free to leave, that he was the subject of a criminal investigation, and that the police were in the process of applying for a search warrant for his house.”   The officers claimed this was necessary to prevent the destruction of evidence on a cell phone while a warrant was being obtained. 

A search warrant was obtained and incriminating evidence was found. 

The defendant challenged the warrant in part by arguing that “law enforcement officers did not independently verify that the cell phone and email accounts belonged to him.”  This argument was rejected.  The court believed it was sufficient for the officers to view the evidence and obtain statements from those who had accessed the email accounts. 

The most interesting argument raised by the defendant, I believe, is the legality of his detention prior to the police obtaining a warrant.  However, the court did not address this issue because the evidence obtained during this delay did not have a substantial impact of the trial, in part because “there was overwhelming evidence that [the defendant] possessed and produced child pornography.” 

In this case, keeping an eye on the defendant for a limited period of time while a warrant is obtained is likely justified once the defendant is aware of a criminal investigation.  Not only could evidence have been removed from a cell phone, but it appears that the email accounts could have been accessed through any Internet connection.  

Encrypted Fourth Amendment

Apparently, you can now purchase an encrypted Fourth Amendment bumper sticker.

Court Hears Argument about TSA Screening

A Federal Appeals Court yesterday heard arguments in a lawsuit alleging that the TSA’s use of full body scanners violates the Fourth Amendment.  According to the Washington Post reporting, the court seemed to be skeptical that the TSA procedures violated the Fourth Amendment.

The judges showed some skepticism that they have the authority to require TSA to make a new rule and noted that passengers can always choose a pat-down from TSA agents instead of going through screeners.  "No one is required to do full-body scanners," Judge Douglas Ginsburg pointed out.
The argument did suggest that the Court would not give the TSA unlimited authority.  “Judge Karen Henderson questioned whether the TSA would be within its authority to determine one day that the security threat required that all passengers be strip searched.”

Thursday, March 10, 2011

More on Watson, Jeopardy, and the Fourth Amendment

Earlier, I posted on what Watson’s Jeopardy victory could mean for the Fourth Amendment.
Professor Fish wrote more eloquently in the New York Times on the ability of computers to discern meaning from seemingly random events:

What computers can’t do, we don’t have to do because the worlds we live in are already built; we  don’t walk around putting discrete items together until they add up to  a context; we walk around with a contextual sense — a sense of where we are and what’s at stake and what our resources are — already in place;  we  inhabit worldly spaces already organized by purposes, projects and expectations
The Fourth Amendment challenge will continue to occur as computers develop an ability that exceeds normal human ability to detect patterns of behavior that reveal private information.

“Can Texas Jail TSA Officials for 'Enhanced' Pat Downs?” No.

A Yahoo! News article asks, “Can Texas Jail TSA Officials for 'Enhanced' Pat Downs?”

The article discusses a bill in Texas that would make the use of full body scanning machines at airport security check points illegal, and would make a pat down a felony.

The supporters believe that they are on firm “firm Constitutional ground” because “the 10th Amendment suggests that the operation of airports is a state and not a federal function.”

They are incorrect.  Texas cannot do this because of the supremacy clause of the constitution.  Airport security is certainly within Congress’ power to regulate as an essential part of Interstate Commerce.  This means that all state laws that conflict with the federal regulations are invalid.

So the short answer to the question raised by the article is:  no.

Can the Police Use Drones for Surveillance?

Police are starting to use a new technology – drones – to fight crime.  A news source in Miami reports that the police are using military style drone aircraft to support SWAT operations.  (Credit to for citing this first.)

The drones currently aren’t being used for surveillance, but there is no reason to think that this won’t happen in the future as police agencies seek to replace expensive helicopter fleets with cheaper unmanned aircraft.

Is this constitutional?  Almost certainly the answer is yes.  In a 1986 decision, Dow Chemical, the Supreme Court held that the government can conduct aerial surveillance over outdoor spaces without a warrant.  The Court acknowledged that while people (and chemical companies in this case) have a reasonable, legitimate, and objective expectation of privacy in the interior of buildings, that expectation of privacy does not extend to the outside.  This is true even if the owner erects fences and other barriers to vision from ground level. 

The Supreme Court in Dow made sure to protect “intimate activities associated with family privacy and the home.”  The Court also warned that new technology could change its thinking:  “It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant.”

Wednesday, March 9, 2011

Lawsuit Filed Against FBI For GPS Tracking

Back in October, I wrote about the student who found an FBI tracking device on his car when he took it in for repairs.

Predictably, a lawsuit has been filed.  Whether the lawsuit is successful will ultimately depend on what the Supreme Court decides when (if?) it takes a GPS tracking case.  Courts are split.  Many have held that law enforcement does not need a warrant to place the device on vehicles.  But some courts have ruled otherwise.

Discovery in this suit could be interesting if the attorneys are able to obtain information about how widespread the practice of placing devices on cars without warrants really is.

Monday, March 7, 2011

More on Court Ruling That Cell Phones are Computers

A quick follow-up to the previous post.

A blog post in New Scientist asks, “Just where is the boundary line between a computer and a cellphone? Does one even exist?”

The post considers the open issue of the ability of police to search cell phones without a warrant, noting:

[A] ruling [allowing a warrantless search] angered many in the US: in crimes in which the accused is carrying their cellphone in their pocket, was it really fair that all the data that is accessible via the cloud - texts, documents and emails - now be seized without warning? Cellphones are now so advanced that official access to one provides the authorities with almost the same level of insight into one's life as the seizure of a home computer. Whatever happened to the Fourth Amendment?
The post notes the conflict between rulings that phones can be search because they are not computers, and court rulings that cell phones are computers for sentencing purposes:  “The police in the US need a warrant to search a suspect's personal home computer, protected, as it is, by the Fourth Amendment. If your cellphone, and all it contains, is now officially a computer can this now be used as a defense to prevent the authorities seizing it when they carry out a search?”

This is the big question. 

Court Rules That Cell Phone Is a Computer.

An important decision last month about cell phones.  The court signals the broad significance in the first sentence by quoting an Apple founder:  “Steve Wozniak, co-founder of Apple Computer, recently mused: ‘Everything has a computer in it nowadays.’  But is an ordinary cellular phone—used only to place calls and send text messages—a computer?”

In this case, the Eighth Circuit Court of appeals considered a sentence to be imposed on a man convicted of transporting a minor in interstate commerce with the intent to engage in criminal sexual activity with her.  He used a Motorola Motorazr to make voice calls and send text messages to the victim.  The Federal sentencing laws call for an enhanced sentence if someone uses a computer to facilitate the offense. 

The court initially rejected an argument that a computer must be connected to the Internet.  The key question, the court suggested, is that separates a computer from an automated typewriter or a calculator.  In this case, the court considered evidence that the cell phone could run software and has a processor that “performs arithmetic, logical, and storage functions when the phone is used to place a call” or send text messages. 

This case involved a simple phone similar to the one pictured here.  It’s the same type of phone I used before getting an iPhone.  I mention this because I am very aware that the capabilities of the phones are light years apart  – so if the Motorazr is a computer, then an iPhone is definitely a computer.  As I have outlined elsewhere, courts have been more reluctant to allow warrantless searches of computers in certain instances, like after an arrest, than they have been to allow warrantless searches of the contents of cell phones. 

Sunday, March 6, 2011

Does Technology Allow Restrictions on Free Speech at Ohio and Wisconsin Capitols?

Recently, a lawsuit was filed by a state representative and some citizens who were denied access to the Ohio statehouse last month.  Similar lawsuits have been filed in Wisconsin.

Courts have, in other circumstances, struck down security zones that push protestors far away from their intended audience.

There is a technology angle on this, as even if the buildings are closed the proceedings are available on television and the Internet.  Viewing is not enough, however.  The question is whether the use of technology allows the same ability to get a message to decision makers. 

In a case involving the 2004 Democratic convention in Boston, for example, a court noted that messages expressed beyond the first-hand sight and sound of the delegates nonetheless are likely to reach the delegates through television, radio, the press, the internet, and other outlets.  

Does the ability to communicate through electronic means eliminate the need for any in-person protests or communications?  Probably not.  The cases involving delegates may not be applicable to legislators because value of getting messages to delegates to a party convention is substantially different than the value of getting messages to legislators.  However, the use of electronic alternatives may get justify further restrictions in the future.   In this situation, closing the statehouse and allowing access through electronic serves as an example of what will likely not be prohibited.  These actions were likely unconstitutional because it foreclosed an entire medium of public expression.   

One final point:  Safety is an important issue, and courts have been deferential to claims by authorities that safety concerns justified restrictions.  However, courts have not accepted without scrutiny claims that safety required a restriction.  This is because safety claims are often a pretext for limiting speech.  As one federal court said, "[C]ourts must . . .  be cognizant of disguised attempts to refuse the fullest scope of free speech allegedly based on governmental concerns such as safety . . .”  And, the Federal Appeals Court in Boston has explained that courts should look especially closely when the restrictions are imposed on views critical of the decision makers:  “Suspicion that viewpoint discrimination is afoot is at its zenith when the speech restricted is speech critical of the government, because there is a strong risk that the government will act to censor ideas that oppose its own.”

Tuesday, March 1, 2011

Police Can -- And Will -- Search Abandoned Cell Phones

A case from Delaware illustrates why you should not abandon a cell phone.  While it may seem obvious, this is especially true when the cell phone contains evidence of a crime.

In this case, the defendant had been living at his sister's home without her knowledge or permission. When he departed, he left two cell phones behind. His sister found them and later gave police access to them. The police did a cursory examination of the phones to determine who was the owner.  The officer observed messages related to a robbery, and then obtained a search warrant for the contents of the phone.

The court ruled that the defendant could not have raised a viable motion to suppress this evidence because the phones were abandoned and the defendant therefore had no legitimate expectation of privacy.

The defendant is now serving a 74 year sentence for robbery, kidnapping, and other related charges.